ON MONDAY, 14 MARCH, both Wall Street and the White House opened nervously for business. The Supreme Court was expected during the course of the day to announce its decision in U.S. v. Northern Securities. Guesses were that the decision would be “very drastic,” perhaps worse for railroad interests than last year’s lower-court ruling.
“All I can do is hope,” Roosevelt told friends.
Of one Justice, at least, he could be sure. Oliver Wendell Holmes, Jr., had so far proved a grateful supporter of Administration policies. During the Alaska boundary negotiations in London, Holmes had worked discreetly to soothe British sensibilities riled by the President’s official commissioners. He called at the White House more often and less formally than any other Justice, and was quite capable of teasing Roosevelt for self-righteousness: “The King, of course, can do no wrong.”
Justice William Rufus Day, Roosevelt’s second appointee to the Bench (in place of the wistful Taft), was a self-effacing little man of mild liberal tendencies. He, too, could be relied on. Justice David J. Brewer certainly could not, being an ultraconservative, patrician ideologue. The other Republicans on the Bench were less predictable. Noisy old John Marshall Harlan (“the last of the tobacco-spitting judges,” Holmes fondly called him) was a libertarian and a maverick. He had been against monopoly in the past, dissenting in U.S. v. E. C. Knight, but was wary of too much federal power. Justice Henry Brown was such a cold-blooded legal theorist, analyzing the statute books as if they were so many volumes of algebra, that he was capable of finding that x equaled y in the face of unanimous sentiment for z. Justice Joseph McKenna was an austere plodder, ill trained in law, and crotchety on issues he could not understand.
On the Democratic side, Chief Justice Melville W. Fuller and Justices Rufus Peckham and Edward D. White were conservatives of uncertain persuasion. They seemed likely to vote against the government—although Roosevelt had hopes of the affable White.
By noon, the Court Chamber in the Capitol was crowded with representatives of all three government branches. Attorney General Knox sat directly in front of the bench, exuding his usual porcelain impassivity. William Howard Taft sprawled nearby, a beached whale. Senators Spooner and Lodge conferred in low voices at the bar. “Oyez, oyez!” the clerk cried. Silence fell as nine Justices filed in, silk robes rustling. The attendance of Justice Brown, who was ill, emphasized the importance of the proceedings.
Chief Justice Fuller seated himself and waited until the chamber had settled. Two dozen reporters standing at the back of the chamber craned to see which way his white head would swivel. He turned to the right, and nodded at Oliver Wendell Holmes.
Holmes proceeded to read, in his clear, sharp voice, a decree reversal of no popular interest whatever. The audience slumped disappointedly. After about five minutes, silence fell again. Fuller gave a second nod, and Justice Harlan announced, “Case Number 277.” Instantly there was a scurrying of shoes, as messengers rushed off to alert congressmen that Northern Securities was “up.” Within minutes, the corridor was jammed all the way to the Rotunda.
“Let us see what are the facts disclosed by the record,” Harlan began. He showed how in 1901 “defendant Hill” and “defendant Morgan” had combined the Great Northern and Northern Pacific railroads into a holding company headquartered in New Jersey—thus making the interests of all stockholders identical. “No scheme or device could more certainly come within the words of the [Sherman] Act … or could more effectively and certainly suppress free competition.” Harlan’s strong, measured voice continued to rise and fall, but evidently the Administration had won its case. The messengers scurried off again, this time to telegraph and telephone offices. Harlan was still reading when they got back. He did not reach his summation until twenty past one: “The judgment of the Court is that the decree below be, and hereby is, affirmed.”
Cables flashed across the country: NORTHERN SECURITIES DECISION AFFIRMED. It was five minutes before someone thought to telephone the President, who was just sitting down to lunch with John Hay. Roosevelt was overjoyed, but declined to comment. William Loeb told reporters that the President felt the victory belonged to Knox.
The dimensions of that victory were still unclear. Back in court, Justice Brewer struck an encouraging note as he concurred with the decision, then a discouraging one as he rejected Harlan’s opinion. But he offered another of his own, proposing a “rule of reason” that would prevent wholesale antitrust proclamations. Justices Day, Brown, and McKenna joined the majority; Fuller, Peckham, and White opposed, making the verdict so far five against three. Only one vote more was needed to make Roosevelt’s victory decisive.
Justice Holmes dissented.
“Great cases,” he lectured the stupefied audience, “like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
He seemed to be implying that an “accident of immediate overwhelming interest” named Theodore Roosevelt had made an emotional issue of Northern Securities, and was exaggerating its legal significance.
The statute of which we have to find the meaning is a criminal statute … of a very sweeping and general character. It hits “every” contract or combination of the prohibited sort, great or small, and “every” person who shall monopolize or attempt to monopolize, the sense of the act, “any part” of the trade or commerce among the several states. There is a natual inclination to assume that it was directed against certain great combinations and to read it in that light. It does not say so. On the contrary, it says “every,” and “any part.” Still was it directed specially against railroads.…
If the act before us is to be carried out according to what seems to me to be the logic of the argument for the Government, which I do not believe that it will be, I can see no part of the conduct of life with which on similar principles Congress might not interfere [and] … hardly any transaction concerning commerce between the states that may not be made a crime by the finding of a jury or a court.
Holmes pointed out that the Sherman Act forbade only combinations in restraint of trade, not combinations in restraint of competition. He saw no evidence that the Northern Securities Company had “attempted to monopolize some portion of the trade or commerce of the realm,” nor had it discriminated against “strangers” to its charter. He rejected Knox’s plea that mere power to discriminate was as culpable as discrimination itself. What was monopoly anyway? A single railroad running down a narrow valley could be said to monopolize local traffic. “Yet I suppose,” Holmes scoffed, “no one would say the statute forbids a combination of men into a corporation to build and run such a railroad in the United States.” Neither could the sheer size of Northern Securities be equated with monopoly. “Size has nothing to do with the matter.”
The Justice concluded with a sarcastic reference to the narrowness of today’s verdict.
I am happy to know that only a minority of my brethren adopt an interpretation of the [Sherman] Law which in my opinion would make eternal the bellum omnium contra omnes, and disintegrate society so far as it could into individual atoms. If that were its intent I should regard calling such a law a regulation of commerce as a mere pretense. It would be an attempt to reorganize society. I am not concerned with the wisdom of such an attempt, but I believe that Congress was not entrusted by the Constitution with the power to make it, and I am deeply persuaded that it has not tried.
So by a margin of just one concurring vote, case number 277 sank to the footnotes of history.
JOHN HAY, who personally disapproved of antitrust actions, was struck by the bitterness of the President’s remarks about Holmes in the days following. “I could carve out of a banana a judge with more backbone than that,” Roosevelt raged. Holmes had not behaved like “a party man, a constructive statesman.” For a while it seemed that the Justice was going to become persona non
grata at the White House, but Roosevelt’s sudden storms were short. “I have such confidence in his great heartedness,” Holmes wrote a friend, “that I don’t expect for a moment that after he has had time to cool down it will affect our relations.”
Knox and Taft joined in lamenting the closeness of the decision. Popularly, however, it was perceived as a big victory for democracy over monopoly. Nine out of ten national newspapers congratulated the President. The case both dramatized and demonstrated the latent strength of the Sherman Act. As the New York Evening Post remarked, the fundamental question of Northern Securities v. U.S.—to what extent might combination freely proceed?—was answered: not much, without popular approval. “Surely the most far-reaching benefit of the decision is the vindication of national control.”
The New York World agreed, but worried about placing such control in the hands of Theodore Roosevelt. He had already broadened the use of executive power in labor mediation, in foreign policy, and in federal patronage. Now he had dissolved the world’s second-largest trust. “Imagine the Demagogue as President, armed with all the legitimate power of an office grown greater than man had dreamed was possible …! He is Everything. He is Power. He is Patronage. He is Privilege.”
The three men most affected by the decision reacted with surprising equanimity. J. P. Morgan puffed serenely on a cigar, smiled, and waggled his great head at reporters. E. H. Harriman turned defeat into victory by suing for his old Northern Pacific stock, at a huge profit. James J. Hill put on a brave public face, saying, “The three railroads are still there, earning good money.” Only in private was he critical of the President as an aspirant king, surrounded by “gilded flunkies.”
Roosevelt persuaded himself that the case had ended happily, in spite of Justice Holmes’s dissent. If he had not achieved the historic review he dreamed of, he had won a temporal accord that redressed the balance between government and free enterprise. Washington resounded with praise, and predictions of four more Rooseveltian years. “As far as I can see,” Joseph Bucklin Bishop wrote in the Commercial Advertiser, “there is no need of an election.”
BY 1 APRIL, Washington was efflorescent with cherry blossom. A million and a quarter new bulbs splotched parks and roadsides. To Roosevelt, who since Groundhog Day had been hopefully snapping twigs for signs of sap, the warming sunshine felt especially pleasant. Mrs. J. Borden Harriman, remembering him as a boy, found him boylike still, “the embodiment of spring … bubbling with life and hope.” An Administration bill to set up American government in the Panama Canal Zone was set for passage, and the nation’s economy was improving. So were his jujitsu skills. Indeed, he had just shown how the latter could be adapted to politics, by grabbing a pension measure right out of the hands of Congress and flipping it into an executive order of his own. Veterans now found that they were eligible for benefits at the early age of sixty-two, and their gratitude was sure to translate into a huge number of votes in November.
As always when the President was happy, his happiness touched those around him. “He is a very sweet and natural man and a very trusting man,” William Howard Taft wrote. “… I am growing to be very fond of him.”
Even so, Roosevelt’s bright spring was not entirely cloudless. William Randolph Hearst seemed intent on a populist campaign for the presidency. Meanwhile, Old Guard Republicans were insisting that lanky, awful Charles W. (“Icicle”) Fairbanks be nominated for Vice President. He was the senior Senator from Indiana, a tireless speaker, and Wall Street’s darling. “Who in the name of Heaven else is there?” Roosevelt asked, not expecting any answer.
A long-simmering foreign-policy crisis also threatened to embarrass him, at a time when he did not want any more accusations of “gunboat diplomacy.” It was virtually a repeat of the Venezuelan affair of 1902–1903, transposed to the Dominican Republic. Again, an impoverished Caribbean nation could not pay its debts; again, Germany was an impatient creditor; again, the United States Navy had conducted “exercises” off Isla de Culebra, in a choreographed evocation of the Monroe Doctrine. So far, Wilhelm II had sent in no warships—only a fulsome letter to Roosevelt, unfortunately not reproducible at the Republican National Convention:
Your unlimited power for work, dauntless energy of purpose, pureness of motives moving towards the highest ideals, this all crowned by an iron will, form qualities which elicit the highest admiration from everybody over here. They are the characteristics of a “man,” and as such most sympathetic to me. The 20th century is sadly in want of men of your stamp at the head of great nations.… Thank Heaven, the Anglo-Saxon Germanic Race is still able to produce such a specimen. You must accept it as a fact that your figure has moved to the foreground of the world, and that men’s minds are intensely occupied by you.
“AS ALWAYS WHEN THE PRESIDENT WAS HAPPY
HIS HAPPINESS TOUCHED THOSE AROUND HIM.” Theodore and Edith Roosevelt receiving at a White House garden party (photo credit 20.1)
The Kaiser could yet turn nasty if Roosevelt did not make good his own Corollary to the Monroe Doctrine, and place Santo Domingo under American receivership. Juan Franco Sanchez, the Dominican Minister of Foreign Affairs, was in Washington practically begging for annexation. Roosevelt saw political problems if he agreed. Any new protectorate, coinciding with his acquisition of the Canal Zone, was likely to reactivate the pesky Anti-Imperialist League, and give the Democrats a major campaign issue. Cuba was libre and the Philippines, thanks to Taft, pretty well pacified; his own youthful appetite for empire was gone.
He searched for a simile strong enough to express his distaste for another insular possession: “I have about the same desire to annex it as a gorged boa constrictor might have to swallow a porcupine wrong end to.”
TWO MONTHS AFTER Mark Hanna’s death, the question of who should be the new chairman of the Republican National Committee had not been resolved. Elihu Root, prospering hugely as a Wall Street attorney, declined to serve. Three other candidates pleaded ill health: Henry Clay Payne of Wisconsin, Winthrop Murray Crane of Massachusetts, and the septuagenarian Cornelius N. Bliss of New York. The last, a veteran of McKinley’s first Cabinet, had such excellent corporate connections, not to mention “stainless honor and purity,” that Roosevelt urged him to reconsider. Bliss said he would think about it.
In the meantime, the President felt free to set his own Republican agenda, in a series of indiscretions calculated to heave fresh sod on Hanna’s grave. He preached conservation to the National Wholesale Lumber Dealers’ Association, and political morality to Republican professionals. He meddled in the gubernatorial politics of New York and Missouri, ordered a draft platform for the convention, considered and approved a mysterious proposal to translate American campaign literature into Bohemian, and grossly flattered the first national assembly of American periodical publishers: “It is always a pleasure for a man in public life to meet the real governing classes.”
Hearing that some desperate Democrats were trying to persuade Grover Cleveland to run against him, he circulated among newspaper editors (“for your private use”) a note from the former President that appeared to support his labor policies during the coal strike. Cleveland fumed with rage: “I am amazed at Roosevelt.… There are some people in this country that need lessons in decency and good manners.”
“Theodore thinks of nothing, talks of nothing, and lives for nothing but his political interests,” Henry Adams noted. “If you remark to him that God is Great, he asks naïvely how that will affect his election.”
Old Guard Republicans worried about the undignified spectacle of a President campaigning for his own office. He was supposed to put himself in the hands of party professionals. McKinley had successfully sat out two campaigns at home in Canton, Ohio; here was “Teddy” virtually setting up pre-convention headquarters in the White House.
The most that conservatives could do, until the party organized itself at the national convention in June, was beg Roosevelt not to go public with his spring exercise schedule, lest ta
bloid newspapers beholden to William Randolph Hearst depict him as a clown, or worse still, a snob. Skinny-dipping in Rock Creek Park, rough-riding on Bleistein, and tennis—that effete, Anglophile pastime of the rich—all carried a high degree of political risk. Aides shuddered at the memory of last year’s tour-bus megaphones on West Executive Avenue.
Reluctantly, in view of the marvelous weather, the President continued to exercise indoors. After some vain efforts to strangle his Japanese wrestling instructor, he managed three new throws that were “perfect corkers.” As a result, he was mottled all over with bruises, and lame in both big toes, the right ankle, left wrist, and thumb.
HIS SIGNATURE FINGERS still worked, however. On 28 April he scrawled Theodore Roosevelt at the bottom of the last sheet of legislation to come his way before Congress adjourned: “An Act to Provide for the Temporary Government of the Canal Zone at Panama, the Protection of the Canal Works, and Other Purposes.” Simultaneously in Paris, documents confirming the sale and conveyance of French rights were signed. Thus, as the largest real-estate transaction in history was consummated, the largest engineering project in history was begun.
Philippe Bunau-Varilla, who had waited in New York for this moment, sailed for France. His last request of Panama was that the diplomatic salary he had declined should be put toward a monument to Ferdinand de Lesseps, the canal’s progenitor. For better or worse, the completed waterway (he could see it already, blue and brimming from Gatun to Balboa) would be identified with a more contemporary hero. Both men would always, for him, merit the supreme adjective great.
“I HAVE TAKEN possession of, and now occupy, on behalf of the United States, the Canal Zone and public land ceded by the Republic of Panama,” Roosevelt announced.
Theodore Rex Page 42
